Summary
In People v. Wheeler, 149 AD3d 1571 (4th Dept 2017), the record supported the determination that the search of the defendant's residence was "rationally and reasonably related to the performance of the parole officer's duty," where the parole officer testified that he searched the defendant's residence for the purpose of determining if defendant was in violation of the conditions of his parole because he "received credible information from law enforcement sources that defendant possessed a [gun] in his" residence.
Summary of this case from People v. JustinianoOpinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Christopher WHEELER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
On appeal from a judgment convicting defendant upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that Supreme Court erred in refusing to suppress evidence located during a compliance check by his parole officer, as well as statements that he made to the parole officer and to the police after his arrest. We reject that contention.
"[G]reat deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its findings should not be disturbed unless clearly erroneous" (People v. Layou, 134 A.D.3d 1510, 1511, 23 N.Y.S.3d 517, lv. denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207, reconsideration denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 ; see People v. Daniels, 147 A.D.3d 1392, 1392–1393, 46 N.Y.S.3d 358 ; People v. Hogan, 136 A.D.3d 1399, 1400, 24 N.Y.S.3d 837, lv. denied 27 N.Y.3d 1070, 38 N.Y.S.3d 840, 60 N.E.3d 1206 ). Contrary to defendant's contention, nothing about the parole officer's testimony is " ‘unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ " (Layou, 134 A.D.3d at 1511, 23 N.Y.S.3d 517 ).
The record supports the court's determination that the search of defendant's residence was " ‘rationally and reasonably related to the performance of the parole officer's duty’ and was therefore lawful" (People v. Johnson, 94 A.D.3d 1529, 1532, 942 N.Y.S.2d 738, lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767 ). The parole officer testified that he searched defendant's residence for the purpose of determining if defendant was in violation of the conditions of his parole because he "received credible information from law enforcement sources that defendant possessed a [gun] in his" residence (People v. Escalera, 121 A.D.3d 1519, 1520, 993 N.Y.S.2d 605, lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 ; see People v. Nappi, 83 A.D.3d 1592, 1593–1594, 922 N.Y.S.2d 669, lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99 ). The assistance of the police at defendant's residence did not render the search a police operation (see People v. Johnson, 54 A.D.3d 969, 970, 864 N.Y.S.2d 132 ).
Defendant concedes that he improperly moved pursuant to CPL 330.30(1) to set aside the verdict in this plea case, but he contends that the court was required to convert the motion to one under either CPL article 440 or CPL 220.60 and to grant it. We reject that contention. Even assuming, arguendo, that the court had any such obligation, we conclude that a motion under CPL article 440 would have been premature (see People v. Spirles, 294 A.D.2d 810, 811, 742 N.Y.S.2d 457, lv. denied 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562, reconsideration denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579 ). Furthermore, the motion, even if addressed under CPL 220.60, lacks merit because the issues raised therein would not be appropriately argued in the context of a motion to withdraw a plea of guilty (see People v. Anderson, 63 A.D.3d 1617, 1618, 879 N.Y.S.2d 784, lv. denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 ). Finally, to the extent that defendant's contention that his counsel was ineffective in failing to move to withdraw the guilty plea survives his plea (see People v. Dixon, 147 A.D.3d 1518, 1519, 47 N.Y.S.3d 617 ), we conclude that his contention lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.